About

From its office in Clayton, Missouri, Danna McKitrick, P.C., delivers legal representation to new and growing businesses, financial institutions, non-profit and government-related entities, business owners, individuals, and families throughout the greater St. Louis region and the Midwest.

Danna McKitrick attorneys practice across many areas of law, both industry- and service-oriented.

Today, marketing and sales are yoked through digital channels. Leads and customer relations are created and maintained on LinkedIn, Facebook, Twitter, Blogs, email, video calls, and chat rooms. Your salespeople use these tools to sell your products. Yet, change happens. Valuable salespeople with critical customer relationships and employee friendships will leave your company. Hopefully, when those employees leave your employ, you have non-competes and non-solicitation clauses in place which prohibit them from directly or indirectly soliciting employees or customers for a period of years after termination of employment.

You hear through the grapevine that your former super salesperson who just quit has an updated job status on LinkedIn. Now some of your employees and customers know where the former super salesperson is now employed. To add insult to injury, your former super salesperson has asked several of your employees to connect via LinkedIn. You are afraid of the Pied Piper effect and that more of your employees will leave you. Plus you paid good money for your lawyer to draft the darn non-solicitation agreement and you want your money’s worth!

How can you as an employer determine if your former salesperson is legally violating the non-solicitation agreement?

Passive solicitation. Is the activity passive and what is the content and substance of the message conveyed? Most courts that have considered this issue have found that an update to an individual’s LinkedIn account is passive. But what about a new request to connect?In Bankers Life and Casualty Company v. American Senior Benefits, Bankers Life sued a former sales manager for updating his LinkedIn account and asking three former co-workers – current employees of his former employer – to connect. Bankers Life argued that asking existing employees to connect was targeted and it would uncover job listings of current employer. The sales manager argued that the connection request was a LinkedIn generic email simply asking to form a professional networking connection on social media. The court noted that the generic emails did not contain any discussion of Bankers Life, no mention of the new employer, and no suggestion that a job description be reviewed. Further, current Bankers Life employees had a choice whether or not to respond and connect, click on the former co-worker’s profile, or review job postings for the salesperson’s new employer. Accordingly, the mere act of asking someone to connect on a social network via a generic email generated by the network itself did not violate the non-solicitation agreement. In Pre-Paid Legal Services v. Cahill, the court held that posting on Facebook that an employee has moved and touting the new employer’s product did not constitute evidence of unlawful solicitation.Courts have also ruled that posting a job opportunity on a LinkedIn is not a solicitation and becoming “friends” with former clients on Facebook does not in and of itself violate a non-compete clause (Enhanced Network Solutions Group, Inc. v. Hypersonic Technologies Corp and Invidia and LLC v. DiFonzo).

On September 21, 2017, the Illinois Supreme Court handed down its decision in Aspen American Insurance Company v. Interstate Warehousing, Inc, greatly limiting the ability of plaintiffs to sue foreign corporations in Illinois simply because the corporation is registered to do business in and may have minimal contacts with Illinois. As described below, the decision joins Illinois with a nationwide trend disfavoring forum-shopping – a practice in which plaintiffs bring suit against defendants in plaintiff-friendly venues unrelated to the defendant’s contacts and the injury giving rise to the action.

The Aspen case concerned a claim filed in Illinois by a plaintiff who had been injured in a fire which occurred in Indiana. The defendant corporation was incorporated in and maintained its principal place of business in Indiana, although it did maintain a warehouse in Illinois and was also registered to do business in Illinois. The defendant corporation moved to dismiss the lawsuit for lack of proper jurisdiction as a result of these facts and the Circuit Court agreed. On appeal, the plaintiff argued that maintenance of a warehouse in Illinois and being registered as a foreign corporation in Illinois was sufficient to impart general jurisdiction over the corporation. Continue reading »

Part 9 of a 12-part series on Legal Considerations for Your Missouri Leasing Business: What You Should Consider Now, Later, and Throughout the Process

As a caveat to this discussion on insurance, we recommend that you consult with an independent insurance agent/broker to ensure that you obtain the most appropriate type and extent of insurance coverage that your specific business will need.

Having said that, there are some general insurance issues every residential or commercial leasing business should consider.

First, foremost, and fundamentally – don’t skip over insurance and do not assume your personal policies will cover your company’s property or operations. Most personal policies do not cover businesses. Continue reading »

In today’s hyper-connected society, there are an increasing number of employers who have instituted policies permitting their employees to work from home in certain circumstances. The U.S. Court of Appeals for the Fifth Circuit, however, held that is not the case for litigation attorneys. In-office attendance is an “essential duty” for a litigation attorney in the context of the American with Disabilities Act (ADA).”

Renee Credeur, a litigation attorney working in the Attorney General’s office in Louisiana was granted a temporary accommodation to work from home following a kidney transplant. After approximately six months, her supervisor denied her continuing request to work from home and Credeur filed a lawsuit alleging, among other claims, failure to accommodate under the ADA. The District Court for the Middle District of Louisiana granted summary judgment in favor of the Attorney General’s office and Credeur appealed. Continue reading »

09/27/17 12:04 PM

Business Law, Employment Law | Comments Off on Working From Home as a Reasonable Accommodation Under the ADA: Credeur v. State of Louisiana |

In its list of protections against discrimination, Title VII of the Civil Rights Act of 1964 does not explicitly include sexual orientation or gender identity. However, the Equal Employment Opportunity Commission (EEOC) interprets the statute’s sex discrimination provision as prohibiting discrimination against employees on the basis of sexual orientation and gender identity.

As its legal basis for concluding that sexual orientation and gender identity are covered by Title VII, the EEOC uses Supreme Court case Price Waterhouse v. Hopkins, which holds employment actions motivated by gender stereotyping are unlawful sex discrimination, along with more recent court decisions(Chavez v. Credit Nation Auto Sales, L.L.C.; Baker v. Aetna Life Ins., et al.; Fabian v. Hosp. of Central Conn; Lewis v. High Point Regional Health Sys.; Hively v. Ivy Tech Cmty. Coll. of Indiana). Although Congress has not amended Title VII to specifically include sexual orientation and gender identity as protected, the EEOC has applied existing Title VII precedents to sex discrimination claims raised by LGBT individuals. The EEOC states these protections apply regardless of any contrary state or local laws; however, the Missouri Court of Appeals appears unfazed. Continue reading »

09/27/17 9:06 AM

Business Law, Employment Law | Comments Off on EEOC: Discrimination Based on Sexual Orientation and Gender Identity is Prohibited |

A cyber incident will happen to your company. It is not a matter of if, but when. Small businesses make an appealing target because hackers know they don’t spend as much on security as larger businesses and are not as careful.

According to a Towergate Insurance study, 82 percent of small business owners claim that they are not targets for attack because there is nothing worth stealing. However, employee personal data and health information and customer data are always worth stealing. Symantec reports that 43 percent of cyber-attacks worldwide in 2016 were against small businesses with less than 250 workers. In fact, cyber crooks try to rob bank accounts via wire transfers, steal customers’ personal identify information, file fraudulent tax returns, commit Medicare fraud, etc.

IBM estimates that nearly two-thirds of all cyber-attacks hit small to mid-sized businesses. More disturbing, the U.S. National Cyber Security Alliance estimates that about 60 percent of those hit are forced to close six months after an attack. A 2016 Poneman Institute Breach Report advises that the average price a small business has to pay after a cyber attack is about $690,000.

One in 14 users are tricked into following a link or opening an attachment with 25 percent of the users making the same mistake twice

It’s all about the money: Perpetrators of data breaches steal and exploit sensitive data for financial gain. They are opportunistic, using phishing to poke for weak points to use as entry points. Phishing, the most common tool, involves collecting sensitive information like login credentials and credit card information through legitimate-looking but fraudulent websites. Ninety-five percent of phishing attacks led to a breach that was followed by the installation of some sort of malicious software (malware).

Small to mid-sized businesses can take preventive steps to minimize damage. Here are 20 tactics to employ to protect your data. Continue reading »

Part 8 of a 12-part series on Legal Considerations for Your Missouri Leasing Business: What You Should Consider Now, Later, and Throughout the Process

It is absolutely critical to keep in mind at all times that your limited liability company or corporation is not an alter ego or simply an extension of yourself. The entity’s bank account cannot be used as your personal bank account, you should not use the entity’s money to cover personal debts, and, in general, your personal assets should not be relied on to continually cover your entity’s debts. This is true even if you are the sole member or shareholder. The entity is and must be treated as a separate “person” from yourself, with its own assets, activities, and representations.

Keeping that distance is often referred to as observing corporate formalities. Failing to do so can remove the very asset protections that your legal entity was designed to impart. Each business model is different and all necessary formalities cannot be listed for each company, but below are some general guidelines for observing the necessary formalities. Continue reading »

A recent turn of events in a San Francisco neighborhood should prompt you and your entity to confirm that your contact information is up-to-date. As reported by the San Francisco Chronicle, residents of a private street, lined with multi-million dollar homes, recently learned that their street had been purchased by real estate investors at a tax sale after the homeowner’s association failed to pay its annual $14 property tax bill for several decades. The association claimed it was unaware of its tax obligations because the county tax bills were apparently sent to the address of a former accountant who hadn’t worked for the homeowners since the 1980s. The residents have filed a lawsuit seeking to undo the tax sale and while their success in that endeavor is uncertain, two things are certainly true—this was a costly and completely avoidable mistake.

While it is prudent to review all of your entity’s contact information to make sure creditors, vendors, and others can easily and consistently communicate with your entity, there are two specific records that are critically important—the contact information of your registered agent and the mailing address for your local real estate taxes. Continue reading »

Missouri Senate Bill 31 amended Missouri Revised Statute Section 490.715 to redefine the “value” of medical expenses as equating to the amount actually paid by or on behalf of a plaintiff, rather than the total amount of medical bills, prior to adjustments, contractual discounts, or write-offs.

Although the new amendment does not go into effect until August 28, 2017, one of the responses expected from the plaintiffs’ bar is one that has already been trending: refusing to proffer plaintiffs’ medical bills as evidence. This approach has been considered by some as an expansion of the “reptile approach,” an approach where the plaintiff’s attorney aims to influence the jury’s decision-making by using tactics to activate jurors’ survival instincts with the expectation that the jury will make decisions based on instinct rather than logic and reasoning. Continue reading »

08/22/17 1:10 PM

Litigation, Other | Comments Off on The Reptilian Response to Missouri’s New Collateral Source Rule |

Part 7 of a 12-part series on Legal Considerations for Your Missouri Leasing Business: What You Should Consider Now, Later, and Throughout the Process

Once you’ve established your legal entity, the next step will be purchase the real estate you wish to lease (or invest in). The type of real estate which will be appropriate for your business will vary depending on a number of factors, including your location, level of investment, and potential tenant base. Not surprisingly, thorough research, inspections, and planning are critical to ensuring success. In this series of posts, we’re outlining several important issues when selecting a property to purchase: title insurance, indenture review, and ensuring appropriate loan documentation.

A Note on Loan Documentation

If you purchase your property with cash, you can skip over this section. However, if you are going to seek a loan from a traditional lender, you will want to make sure the loan is properly documented. This includes, to the extent possible, working with your lender to ensure the business entity (not the members/shareholders) is listed on the loan documents. Ideally, your entity will be listed as the borrower on the promissory note and the grantor of the deed of trust (mortgage) on the property to be acquired by your entity. This helps to distinguish the transaction as one of the business rather than that of the members and shareholders personally. Every lender is different and will have its own lending requirements.

As a side note, it is becoming increasingly common for real estate transactions to involve some form of tax credits as the credits can be critical in ensuring the economic success of a particular deal. The principles above concerning appropriate loan documentation are also applicable to seeking and securing tax credits.

Personal Guarantees and the Lender Exception to Asset Protection

When you seek a loan in the name of your company, the lender may still request the principals of the acquiring entity to personally guarantee the loan. This will be more likely the case with new entities, entities without other assets, and where the debt to equity ratio of the loan to property value is high. A personal guaranty of the principals helps assure the lender that if the company fails to pay the promissory note, the lender can still seek repayment from the individual(s) that caused the company to get the loan. Continue reading »